2015 (9) TMI 396 - HC - Customs

Sanction of refund due According to petitioner, refund application was made as early as in 2004 and yet refund was not granted It was contended that if appeal was filed by Department, then question of granting refund at that stage does not arise Held that - petitioner should be informed in writing by respondent as regard fate of his refund claim If department preferred appeal against order of Commissioner (Appeals), petitioner should be put on notice Direction issued to respondent to consider petitioner s request and pass orders on merits and in accordance with law Petition disposed of Decided partly in favour of assesse.

Summary

Issues: Petitioner seeking writ of mandamus for refund sanction based on Order-in-Appeal; Delay in refund despite successful appeal; Department's appeal status before Tribunal; Court directing respondent to inform petitioner about refund claim status; Court directing respondent to consider petitioner's request and pass orders within four weeks.

Analysis:
1. The petitioner sought a writ of mandamus to direct the respondent to sanction the refund due to him following an Order-in-Appeal issued by the Commissioner of Customs (Appeals) on 18-10-2013. The Commissioner allowed the petitioner's appeal against the original order rejecting the refund claim, stating it was not maintainable without challenging the assessment order. The Tribunal had remanded the case for reconsideration, and the petitioner claimed the Department did not appeal against the Order-in-Appeal, thus entitling him to the refund.

2. Despite the petitioner's refund application dating back to 2004 and success before the Commissioner, the refund had not been granted. The petitioner's counsel made representations on 1-11-2013 and 25-11-2013, which remained unaddressed, leading the petitioner to approach the Court seeking relief.

3. The Senior standing counsel for the respondent acknowledged receipt of notice but raised uncertainty regarding the Department's appeal status before the Tribunal in response to the Order-in-Appeal dated 18-10-2013. The Court, after hearing both parties and reviewing the case materials, directed the respondent to clarify the situation to the petitioner regarding the refund claim and notify if an appeal had been filed.

4. The Court emphasized the importance of informing the petitioner about the status of the refund claim and instructed the respondent to consider the petitioner's requests from 1-11-2013 and 25-11-2013 promptly. A time-bound directive was issued for the respondent to evaluate the petitioner's claim on its merits and in compliance with the law within four weeks from the receipt of the Court's order.

5. Additionally, the Court directed the petitioner to provide a copy of the representation, the original refund application, and a copy of the Court's order to the respondent for further processing. With these directives and clarifications, the Court disposed of the writ petition without imposing any costs on either party.